This Court of Appeals case provides details of the establishment of the Lebanon Junction independent school district in 1897, and a challenge to it in 1903.
The Kentucky Law Reporter
Vol 25. July 15, 1903. No. 2. Pages 81-84
[Reported by Wm. Cromwell, Esq., of the Frankfort, Ky., Bar.]
KENTUCKY COURT OF APPEALS.
COLLINS v. MASDEN, &c.
(Filed May 29, 1903—Not to be reported.)
1. Graded schools—Taxation—Injunction—This action was brought by taxpayers to enjoin the collection of taxes levied in the district to support a graded school. The levy is sought to be enjoined on several grounds.
2. Election—The election organizing the district was not invalid as the record discloses that no illegal votes were received and that no legal votes were refused. The preponderance of the evidence is that the votes of two men who it is alleged voted after the polls closed, voted before the closing hour, but if this were true it did not affect the result. Where the person appointed as clerk of the election upon a valid excuse fails to act, the selection of another person by the judge, with the consent of the voters present, was a sufficient appointment. Although the person selected as clerk was voted for as one of the trustees, this would have only affected his own election had this constituted a disqualification. He was a de facto officer as to the voters in other particulars. The election was viva voce, and no fraudulent conduct on his part is charged. Where the returns were signed by the clerk alone the refusal of the judge to sign them did not invalidate them. An officer of the election will not be permitted to defeat the will of the voters by refusing to sign the returns. The election was not invalid because the notice and order of election included two small parcels of land beyond the two and one-half mile limit.
3. Assessment—The assessment was not invalid under section 4443, Kentucky Statutes, as it was correctly done under direction of the county superintendent and sheriff, who had been selected as district treasurer.
4. Fixing time for payment of taxes—The failure of the trustees to fix a time for the payment of taxes did not invalidate the levy.
5. Tender of tax receipt—The failure of the sheriff to tender a tax receipt before making a levy would not invalidate the levy. As it is the duty of a taxpayer to pay his taxes, he should tender same before seeking an injunction on this ground. It will be presumed that the sheriff did his duty in tendering tax receipts.
Fairleigh, Straus & Fairleigh, J. F. Combs and J. R. Zimmerman for appellant.
Chapeze & Halstead and Ben Chapeze for appellees.
Appeal from Bullitt Circuit Court.
Opinion of the court by Judge O'Rear.
An election was held in common school district No. 16, in Bullitt county, embracing the town of Lebanon Junction, to determine whether it should be changed from a common to a graded school district. As the result of the election, it was certified that the proposition to change had received fifty votes, while forty-five had been cast against it. The result was certified by the county canvassing board and the county court to the superintendent of schools, who met with the trustees elected at the time the proposition was voted upon (September, 1897), and organized the graded school district. The board of trustees so elected assumed the duties of their office, and, as they were by statute permitted to do, made the sheriff of the county ex officio their treasurer to collect the tax imposed by the board for the benefit of the school.
These suits were brought by nine of the taxpayers of the district against the sheriff, seeking to restrain the collection of the tax from them. They allege as grounds for their resistance that the election was illegally held, and was void; that frauds had been committed by the officers of election by which legal qualified voters who were against the change and the tax were refused and not permitted the right to vote; that illegal voters were permitted to vote in favor of the change and tax, and that the officers kept the polls open and received votes in favor of the change and tax after the time fixed by law for the closing of the polls. It is also claimed that the returns were not signed by the officers appointed to hold the election, and that they were not canvassed. In other words, some two years after the election was held, and after all or about all the taxpayers had paid their taxes except appellees, this suit to contest the election, as it were, is brought.
The record discloses that no illegal votes were received; that no legal votes, in fact it does not show that any voters, were refused. There seems to be a question whether two men were not permitted to vote after the hour for closing the polls. The preponderance of the evidence, in our opinion, is that their votes were received before the closing hour. But be that as it may, it did not affect the result.
The person appointed as clerk of the election, upon a valid excuse, failed to act. Another was selected by the judge, with the consent of the voters present, to act in his stead, and did act. This was a sufficient appointment. (Trustees v. Garvey, 80 Ky., 168.) He was voted for as one of the trustees. But as he was already a trustee of the common school district, and he and the others elected seem to have been elected without opposition, it does not appear to us that he had such interest as disqualified him from acting as clerk. But if the disqualification had existed, it could have affected his own election only. He was assuredly a de facto officer as to the voters in other particulars. The record does not show that he did anything wrong in connection with the election. It was a viva voce election, and there does not appear the slightest ground for the charge of fraud.
The judge of the election failed to sign the returns. But the clerk did. The judge's failure was because, as he says, the two votes were received after the polls closed. He does not otherwise attempt to impeach their correctness. An officer of an election will not be permitted to defeat the will of the voters by refusing to sign the returns. He may be compelled to sign them by mandamus, or, if they are verified and identified by the signature of the other officers, they will be considered sufficient. (Keller v. Ferguson, 24 Ky. Law Rep., 1205.)
The territory proposed in the notice and order of election included two small parcels of land beyond the two and one-half mile limit. (Section 4464, Kentucky Statutes.) However, no voter lived within the outlying territory, nor does it appear that any part of it is included in the property owned by any of the complaining taxpayers. Besides, the overplus is too insignificant to be material in this case. The circuit court adjudged the election legal, and that the proposition to change to a graded school district and in favor of the tax had been regularly adopted. A question is raised that the assessment was so irregular as to be void.
Section 4443, Kentucky Statutes, requires: "Within ten days after said levy it shall be the duty of the district treasurer, with the assistance of the county superintendent, to make, or cause to be made, from the assessor's book, as equalized for county taxation, and the records of assessments of property as filed by the railroad commissioners or board of assessment in the office of the county clerk, a list of the names of all persons or corporations liable for such taxes, and the amount of property owned by each, and liable therefor, and the total amount of taxes due thereon, and shall file a copy of the list with board of taxation."
The assessment was made as directed by this section. Appellees insist it was not, because the superintendent did not make or act in conjunction with the treasurer's assistant in making the transcript from the county court clerk's records of the assessment for county and State purposes, so far as embraced by the school district. In point of fact the county superintendent and sheriff together directed the doing of this work. It was correctly done, and approved by them. The superintendent was required to do no more than was the sheriff, that is, "to make, or cause to be made," the list of property and taxpayers, which thereby becomes the assessment for the school district for that year.
It seems that the trustees failed to fix the time by which the tax should be paid. The section (4443) required that they should fix such time, which shall not be less than two nor more than four months from the time of making such order. The taxpayer is then required to pay his taxes within that time, or suffer a penalty. No penalty is sought to be collected in this case. The distraint for the taxes was not made till more than four months after the levy. We are of opinion that the order fixing the time for payment above mentioned is for the benefit of the taxpayers, as regarding his liability to penalties upon default. It does not affect the validity of the levy, nor is it meant as a statute of limitation, beyond which no collection could be exacted. It is claimed that the sheriff failed to tender tax receipts to some of appellees before levying upon their property. The sheriff, in his testimony, contradicts this. The presumption of law is that the officer did make the tender if it was his duty to do so. However. as it was the duty of appellees to pay their taxes, and at least to tender them before enjoining their collection on the ground last discussed, their failure can not help them in this suit.
The circuit court judgment, holding the assessment invalid and enjoining the collection of the tax, is reversed. The cross appeal of appellees from the judgment holding the election to have been legally held is affirmed. The cause is remanded, with directions to dismiss the petitions and dissolve the injunctions.
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